Schultze v. Mayor, Aldermen & Commonalty

*310 Danforth, J..

The money in question was paid by the testator to prevent the enforcement of illegal assessments imposed upon certain lots in the city of New York, and within well-settled principles of law may, under the circumstances of the case, be recovered back as so much money received by the defendant for the testator’s use. The assessments were confirmed in June, 1871, and with interest amounted to $67,151.97. Proceedings to vacate or reduce the assessments were soon thereafter instituted in the name of John Crosby Brown, the then owner of record of the lots assessed, under the “ acts in relation to frauds in assessments for local improvements in the city of New York” (Laws of 1858, chap. 338; Laws of 1870, chap. 283, § 27), but while they were pending and undetermined, the plaintiffs’ testator was required to pay, and did pay, the whole amount above stated to the defendant. Afterward an order was made by the Supreme Court in the proceedings referred to, reducing the above sum to $34,632.52, which was adjudged to be the proper assessment on said lots. This left in the hands of the defendant the sum of $32,519:45, being the excess over the legal and just assessment, and for this amount the plaintiff has had judgment. It was affirmed by the General Term, and we cannot, upon the matters alleged and established by the record, see any other way in which judgment could have been given. .

At the close of the plaintiffs’ evidence the defendant’s counsel moved to dismiss the complaint upon the sole ground that the plaintiffs had failed to show ownership by their testator of the property assessed, and the only reason for this appeal is the denial of that motion. As to that it appeared that the testator purchased and paid for the property, but the title was taken in the names of his sons “ for convenience sake,” and one of them afterwards conveyed to the other, who, upon the testator’s death, conveyed it to his executors, the plaintiffs here. Legal ownership of the assessed property is not essential, even in proceedings to reduce the assessment. That right is conferred upon any person “ aggrieved thereby ” (Laws of 1858, chap. 338 ;

Pursell v. Mayor, etc., 85 N. Y. 330 ), and the question was necessarily *311 disposed of in those proceedings. So the right of restitution extends not only to the person in whose name the proceedings were taken, but to every one in whose behalf they were instituted, and here it may well be presumed that one who held the title for the convenience of another acted in his behalf in seeking to rid the land of an illegal assessment, and also that he who paid the money under the coercion of that assessment had an interest in its protection. It is enough that the payment was not voluntary, and the modification of the assessment shows that it was obtained from the plaintiffs’ testator without right.

The learned counsel for the appellant relies upon the enactment that where a grant shall be made to one person, for a consideration paid by another, no trust shall result in favor of the person paying the money, if the conveyance shall be so made by consent of the owner of the fund, and the title ■shall vest in the alienee. (1 R. S. 728, §§ 51, 53.) We do not see that this statute has any application to the case in hand. It does not appear that the testator consented to an unconditional and absolute conveyance to his son, nor but that he supposed the purpose or “ convenience ” to be served would be expressed in it (Lounsbury v. Purdy, 18 N. Y. 515 ), and no presumption can be indulged in to support a defense which in any view is without merit, for the defendant’s apprehension that it may hereafter be vexed for the same money by John Crosby Brown, the party moving in the reduction proceedings, is not well founded. He paid no money; he is one of the parties plaintiff here, suing in the right of his testator, and rests his case upon allegations wholly inconsistent with any personal claim. The action of the court in reducing the assessment must be held to be conclusive that the money now at stake was obtained by the defendant without right, and is, therefore, held by it for the testator’s use.

(Peyser v. Mayor, etc., 70 N. Y. 497 ;

Purssell v. Mayor, etc., supra.)

The judgment only requires restitution to his representatives and should be affirmed.

All concur, except Finch, J., not voting.

Judgment affirmed.